Exhibit (a)(5)(xxiv)
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 2, dated as of January 28, 2002, is between WILLAMETTE
INDUSTRIES, INC., an Oregon corporation (the "Company"), and MELLON INVESTOR
SERVICES LLC (f/k/a CHASEMELLON SHAREHOLDER SERVICES, L.L.C.) (the "Rights
Agent").
WHEREAS, the Company and the Rights Agent, are parties to a Rights
Agreement dated as of February 25, 2000, as amended by Amendment No. 1 thereto
dated as of December 11, 2000 (as amended, the "Rights Agreement").
WHEREAS, the Company deems it advisable to amend the Rights Agreement; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Board of
Directors has determined that the amendment to the Rights Agreement set forth
herein is necessary and desirable and the Company and the Rights Agent desire to
evidence such amendment in writing as set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
1. DEFINED TERMS. Terms defined in the Rights Agreement and not
otherwise defined herein shall have the meanings given to them in the
Rights Agreement.
2. AMENDMENT OF SECTION 1(A). Section 1(a) of the Rights Agreement is
hereby amended by deleting such section in its entirety and inserting the
following in lieu thereof:
"Acquiring Person" shall mean any Person (as defined) who or
which, together with all Affiliates and Associates (as defined) of
such Person, shall be the Beneficial Owner (as defined) of 15 percent
or more of the Common Shares of the Company then outstanding; subject
to the exceptions stated in this Section 1(a). An Acquiring Person
shall not include (i) the Company, any Subsidiary of the Company, any
employee benefit plan ("Plan") of the Company or of a Subsidiary of
the Company, or any Person holding Common Shares for or pursuant to
the terms of any such Plan, (ii) any Person who becomes such a
Beneficial Owner as the result of a Sanctioned Tender Offer, or (iii)
Weyerhaeuser Company ("WY") and any of its Affiliates, so long as
neither WY nor any of its Affiliates are the Beneficial Owner of any
Common Shares other than (A) Common Shares which WY and its Affiliates
beneficially own solely by reason of the Agreement and Plan of Merger
dated as of January 28, 2002 (the "Merger Agreement") among the
Company, WY and a wholly owned subsidiary of WY or the consummation of
any transaction contemplated thereby and (B) any Common Shares
beneficially owned by WY and its Affiliates as of January 28, 2002.
Notwithstanding any provision of this Rights Agreement to the
contrary, no Distribution Date or Shares
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Acquisition Date shall be deemed to have occurred, neither WY nor any
of its Affiliates shall be deemed to have become an Acquiring Person
and no holder of Rights shall be entitled to exercise such Rights
under, or be entitled to any rights pursuant to Sections 3(a), 7(b),
11(a) or 13(a), of this Rights Agreement solely by reason of (x) the
approval, execution or delivery of the Merger Agreement or (y) the
consummation of the offer or the merger pursuant to the Merger
Agreement; provided that in the event that WY or any of its Affiliates
becomes the Beneficial Owner of any Common Shares after the date
hereof in any manner other than as set forth above, the provisions of
this sentence (other than this proviso) shall not be applicable. No
Person shall become an Acquiring Person as the result of an
acquisition of Common Shares by the Company which, by reducing the
number of Common Shares outstanding, increases the proportionate
number of Common Shares beneficially owned by such Person to 15
percent or more of the Common Shares then outstanding, provided,
however, that if a Person shall become the Beneficial Owner of 15
percent or more of the Common Shares then outstanding by reason of
such share acquisitions by the Company and shall thereafter become the
Beneficial Owner of any additional Common Shares, then such Person
shall be deemed to be an Acquiring Person unless upon the consummation
of the acquisition of such additional Common Shares such Person does
not own 15 percent or more of the Common Shares then outstanding. If
the Board of Directors determines in good faith that a Person who
would otherwise be an Acquiring Person became such inadvertently
(including, without limitation, because (A) such Person was unaware
that it beneficially owned a percentage of the Common Shares that
would otherwise cause such Person to be an Acquiring Person or (B)
such Person was aware of the extent of its Beneficial Ownership of
Common Shares but had no actual knowledge of the consequences of such
Beneficial Ownership under this Agreement) and without any intention
of changing or influencing control of the Company, and if such Person
as promptly as practicable divested or divests itself of Beneficial
Ownership of a sufficient number of Common Shares so that such Person
would no longer be an Acquiring Person, then such Person shall not be
deemed to be or to have become an Acquiring Person by reason of the
acquisitions to which the Board's determination applies, for any
purposes of this Agreement. For purposes of this Section 1(a), in
determining the percentage of the outstanding Common Shares with
respect to which a Person is the Beneficial Owner (A) all shares as to
which such Person is deemed the Beneficial Owner shall be deemed
outstanding and (B) shares which are subject to issuance upon the
exercise or conversion of outstanding conversion rights, rights,
warrants and options other than those referred to in (A) shall not be
deemed outstanding. Any determination made by the Board of Directors
as to whether any Person is or is not an Acquiring Person shall be
conclusive and binding upon all holders of Rights."
3. AMENDMENT OF SECTION 7(B). Section 7(b) of the Rights Agreement
is hereby amended by (x) deleting the word "or" immediately preceding
clause (iv) therein and (y) adding the following new phrase immediately
following clause (iv)
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therein: "or (v) immediately prior to the Effective Time (as defined in the
Merger Agreement)".
4. EFFECTIVENESS. This Amendment shall be deemed effective as of
January 28, 2002 as if executed by both parties on such date. Except as
amended hereby, the Rights Agreement shall remain in full force and effect
and shall be otherwise unaffected hereby.
5. GOVERNING LAW. This Amendment shall be deemed to be a contract made
under the laws of the State of Oregon and for all purposes shall be
governed by and construed in accordance with the laws of such state
applicable to contracts to be made and performed entirely within such
state.
6. MISCELLANEOUS. This Amendment may be executed in any number of
counterparts, each of such counterparts shall for all purposes be deemed an
original and all such counterparts shall together constitute but one and
the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date set forth above.
WILLAMETTE INDUSTRIES, INC.
By: /s/ Xxxxx X. XxXxxxxxx
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Name: Xxxxx X. XxXxxxxxx
Title: President and Chief
Executive Officer
MELLON INVESTOR SERVICES LLC
By: /s/ Xxxxxx Xxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
